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September 19, 2023

ABA Adopts Policy on Guardianship Bill of Rights and Due Process Protections

Erica Costello

The PDF in which this article appears can be found at BIFOCAL Vol. 45, Issue 1. 

At the ABA Annual Meeting in August of 2023, the House of Delegates unanimously passed Resolution 506, urging national, state, local, territorial, and tribal law and policy-making bodies to adopt the provisions of the “Guardianship Bill of Rights,” promulgated by the National Guardianship Network (NGN) in 2022, and to protect the right to Due Process in guardianship proceedings. The adoption of this Resolution furthers the ABA’s on-going guardianship reform efforts and recognizes the importance of having meaningful due process protections in guardianship and conservatorship proceedings.

Resolution 506 was co-authored by the ABA Commission on Law and Aging (COLA) and the ABA Section on Civil Rights and Social Justice and is based upon recent recommendations from a taskforce established by the NGN.  The NGN is comprised of representatives from various member organizations that advocate for quality guardianship practices and procedures, including ABA COLA and the ABA Section of Real Property, Trust, and Estate Law.  

In May of 2021, the NGN convened the Fourth National Guardianship Summit, virtually hosted by the Syracuse University College of Law. The purpose of the Summit was to review current guardianship policies and practices and make recommendations for reform over the next decade. At the Summit, 125 delegates adopted twenty-two (22) recommendations for guardianship reform—including Recommendation 1.1, which called upon the NGN to convene a task force to draft a model national Bill of Rights for adults subject to a guardianship.

Following the Summit, the NGN established a task force in 2022 to create the first model national “Guardianship Bill Rights.”  The task force, including members from national disability and aging organizations, individuals at risk or subject to guardianship, and family and professional guardians, created a model document affirming the rights of adults who have a guardian, including the right to an attorney to advocate for the outcome they want, the right to be present and participate in all court hearings, and the right to keep all rights not granted to their guardian. The document also affirmed other access to justice rights, core human rights, and decision-making rights that should be afforded to adults at all times when they have a guardian.

Resolution 506 was drafted and passed following the NGN taskforce’s recommendations, urging law and policy-making bodies to enact the NGN’s “Guardianship Bill of Rights,” as well as take necessary steps to ensure meaningful due process in guardianship and conservatorship cases. All too often stories in the news media report that individuals are placed under unnecessary guardianships because of a lack of fundamental due process protections, including the failure to have counsel appointed to represent the individual, the failure to receive notice of the hearing or be heard by the court, and the failure to confront or cross examine witnesses to the case. It is imperative that individuals subject to guardianship or conservatorship proceedings have the right to present a guardianship defense and be provided with meaningful due protections, even if such protections are not explicitly provided in state statutes.

There are currently only eleven states that have statutory provisions providing a “Bill of Rights” for individuals subject to guardianships or conservatorships, or have language specifying rights retained by persons in guardianship or conservatorship cases.  While these statutes typically recognize basic due process protections afforded to all adults subject to guardianship or conservatorship proceedings, they may not encompass all of the protections recognized by the NGN’s “Guardianship Bill of Rights.” As such, the NGN’s “Guardianship Bill of Rights” provides law and policy-making bodies with an excellent model to consider adopting or take into consideration when amending existing statutes.

The passage of Resolution 506 is a huge step towards improving current guardianship policies and practices across the country.  It encourages the adoption of the NGN’s model “Guardianship Bill of Rights” and provides a template for protecting the rights of individuals subject to guardianship or conservatorship proceedings. It also seeks to ensure meaningful due process protections for anyone whose rights are at risk in such proceedings. The provisions in Resolution 506 are especially important for protecting individuals who have a conservator or guardian appointed by the courts.

    Erica Costello

    Senior Attorney, American Bar Association Commission on Law and Aging

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